That mistake is unforgivable since I’m currently defending against a collateral estoppel argument in one of my cases.

I’ll forgive you anyways, just to show you what a big heart I have. ;-)

]]>By: Markhttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60802
Wed, 29 Oct 2008 14:23:12 +0000http://www.thelibertypapers.org/?p=3096#comment-60802Jeff:
To a certain extent I agree with you, which is why I wrote that the SCOTUS has gone too far with the way in which it has restricted standing.

But some limitation on standing is necessary. In this specific case, for instance, I don’t think many people can point to an actual (rather than merely theoretical) harm imposed by an ineligible President. Certainly I think a member of the Electoral College could point to a harm, as could a competing candidate.
Similarly, and taking this outside of the realm of the Constitution, the standing doctrine is important as a means of preventing people from suing the government every time the government imposes a policy that they don’t like – regardless of its Constitutionality. On the political question issue, which is a sub-area of the standing issue, the problem is a little different – if there are two valid competing Constitutional interests, it’s appropriate for the courts to leave it up to the voters to decide because the courts really have nothing to go on.

Again, though, I think the courts have gone too far in prohibiting standing, particularly taxpayer standing, because government expenditures are paid out of funds that are taken from individual taxpayers; if those funds are abused, I think individual taxpayers are clearly harmed. Even so, most taxpayer suits on Constitutional grounds would not survive a motion to dismiss because of the extensive precedent expanding the meaning of the interstate commerce and necessary and proper clauses.* Which makes the problems with the standing doctrine something of a non-issue in most areas.

If it were up to me, I would replace the requirement of a particularized injury with a requirement only that the harm caused to the Plaintiff is the type of harm the allegedly violated provision or statute seeks to prevent. But this suggested change would have only minimal practical effects since most taxpayer suits would still get dismissed on res judicata grounds.

*This is the principle of res judicata. I accidentally wrote in my previous comment that res judicata would not apply – in that comment, I should have said collateral estoppel instead of res judicata. That mistake is unforgivable since I’m currently defending against a collateral estoppel argument in one of my cases.

The reasoning is that these types of general questions are best resolved through the elected branches of government – the courts are, perhaps rightly, extremely reluctant to get involved in issues that involve so-called “political questions.”

I think this is one of the world’s biggest lies. EVERYTHING is political. The Constitution defines the limits of fedgov. That’s true even if you happen to loosely interpret every clause in it. Thus, every single law is possibly in violation of it.

Furthermore, every libertarian should understand that every law harms all of us. If it’s a spending bill, it costs us money through either taxation or inflation. If it’s a regulation, it costs us through a higher cost of living.

Thus, every individual has legitimate cause to challenge every law. I don’t care that the harm is usually minute and remote. It’s no less real. The cumulative effect of the past two centuries makes that abundantly clear.

As for “redressable”, that’s easy: strike down the offending portions of the law.

I don’t buy the pragmatic argument, either. Standing is not the only legal principle that keeps the courts from clogging. It would be a rough adjustment, but eventually, a huge list of precedents would build up to the plug the gaps.

However, state election laws present a vastly different avenue and there are well-accepted procedures for challenging another candidate’s eligibility for the ballot before the election. There is usually no political question issue where someone who otherwise has standing challenges a ruling by an administrative agency such as an elections board. Of course, any challenges through that avenue would not technically be challenges under the federal Constitution but would instead be based on state law that theoretically incorporates federal Constitutional requirements into its decisions on ballot eligibility. So there would be no binding precedent if, say, West Virginia found a candidate ineligible that would require the candidate be removed in other states.

even if there could be generalized taxpayer standing to challenge a President’s eligibility to serve in federal court (and I don’t think there could, or even should), that standing could only occur after the President was formally elected after the meeting of the Electoral College. Until that time, there is no conceivable Constitutional harm because all the Constitution cares about is how the Electoral College votes.

An excellent point

And here’s another thought — until an allegedly ineligible person is formally elected President by the Electoral College, I think you could also argue that the entire eligibility issue is a political question that shouldn’t be dealt with by the Courts at all.

If there was any real evidence that Barack Obama was not an American citizen, then it would have come out by now. Hillary Clinton would have used it in the primaries, McCain would have used it by now.

That’s why the example that someone posed in a comment above of who would be able to stop Arnold Schwarzenegger from running for President if nobody had standing to sue misses the point — if Arnold tried to run for President in 2012, then whoever else was running against him would bring up the citizenship issue and his campaign would be over.

While I understand what you are saying, there is a certain level of necessity to imposing a standing requirement that someone suffer a particularized harm in order to bring suit. Otherwise, people could (and would) just keep bringing the same claims or types of claims and clog up the court system; principles of res judicata can’t apply to prevent different plaintiffs from bringing the same types of claims. As a general matter, government would not be able to function at all (not necessarily a bad thing, of course) if anyone could sue over any policy they didn’t like at any time.

But the whole doctrine is derived from the requirement in Article III that courts only hear “cases and controversies.” This requirement generally means that you have to allege that you have (1) suffered an actual harm (2) due to the defendant’s actions AND (3) that a favorable decision by the court will actually redress your harm.

Personally, I tend to think that the SCOTUS has gone a bit too far in prohibiting standing in various types of lawsuits, and the dividing line can often be extremely arbitrary. For instance, taxpayer suits are generally not allowed…. except when they are. The reasoning is that these types of general questions are best resolved through the elected branches of government – the courts are, perhaps rightly, extremely reluctant to get involved in issues that involve so-called “political questions.”

But the general requirement that there be an actual, redressable harm of some sort makes a lot of sense, and has a pretty lengthy history in law. Again, I think the SCOTUS has gone a bit too far in limiting the situations where standing exists.

But under no possible conception of “redressable harm caused by the alleged action” would “Obama’s eligibility for President prevents me from voting for Hillary Clinton” qualify. This is particularly true since: (a) nothing prevents Hillary Clinton from running as a third party candidate; (b) it is entirely speculative to conclude that Hillary Clinton would be the nominee were Obama ruled ineligible; and (c) the Democratic Party is a nominally private actor entitled to govern its own nomination process. Some other things worth noting (although I don’t want to give anyone the idea that questioning Obama’s eligibility is a valid use of the courts at this point):

First, the appropriate body to sue would have been the State Election Board; the Obama campaign (and the Dem Party) are private actors who are not themselves subject to Constitutional requirements. Berg may as well have sued the telephone company for violation of his free speech rights by shutting off his service when he doesn’t pay his phone bill due to the sanctions he should have to pay. The State Election Board, however, is responsible for ensuring the eligibility of candidates. That Berg chose to sue the campaign directly only further proves that he was either grandstanding or is simply an incompetent attorney.

Second, it would have been much wiser to sue the State Board of Elections in state court rather than federal court. State courts can sometimes have dramatically lower standing requirements, and voting in Presidential elections is entirely a function of state law. Also, there is no Constitutional right to vote in the Presidential election; instead, placement on the ballot is technically a function of state law, even though it may require the application of a federal Constitutional requirement.

Third, even if there could be generalized taxpayer standing to challenge a President’s eligibility to serve in federal court (and I don’t think there could, or even should), that standing could only occur after the President was formally elected after the meeting of the Electoral College. Until that time, there is no conceivable Constitutional harm because all the Constitution cares about is how the Electoral College votes.

]]>By: TerryPhttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60780
Mon, 27 Oct 2008 22:06:07 +0000http://www.thelibertypapers.org/?p=3096#comment-60780While I think the merits of this case are a little ridiculous, I still don’t get, though, where a voter does not have standing in regard to a Presidential candidate. If elected he will be governing over each one of us. Even if he doesn’t get elected he may cause others to get elected that shouldn’t have or just have undue influence in a campaign that he never should have been allowed in. Are they saying that we don’t have standing until he becomes elected? That seems a little dumb. Or are they saying that we will never have standing even if he is elected, since we are just the we little people. That is just flat out un-American and wrong.
]]>By: Markhttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60779
Mon, 27 Oct 2008 18:22:56 +0000http://www.thelibertypapers.org/?p=3096#comment-60779I just noticed that you asked when standing would attach as well. A rival candidate/political party would have standing to challenge eligibility at any time after the possibly ineligible candidate was placed on the ballot. A member of the Electoral College would probably only have standing, if at all, after the EC formally voted since there’s probably no “harm” until the President is formally elected.
]]>By: SChttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60770
Mon, 27 Oct 2008 17:34:09 +0000http://www.thelibertypapers.org/?p=3096#comment-60770Sigh…whatever your opinions are of either candidate for good or ill, at least base them on facts instead of conspiracy theories, folks.

]]>By: Markhttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60768
Mon, 27 Oct 2008 16:36:40 +0000http://www.thelibertypapers.org/?p=3096#comment-60768thomasblair, et al: I tried to answer your question on the previous thread. Presumably, anyone whose name appeared on the ballot (or any political party who met that requirement) with Obama would have standing since they could point to a discrete injury. Others with standing would possibly include FEC commissioners (who have a statutory duty), members of the Electoral College (who have a Constitutional duty to ensure that the President is Constitutionally eligible). I somewhat doubt it, but it’s also possible that members of Congress would have standing.

Also, you could conceive of a state-level election official refusing to put someone on the ballot on grounds of ineligibility, which would quickly lead to the allegedly ineligible candidate suing the election official.

]]>By: thomasblairhttp://www.thelibertypapers.org/2008/10/25/federal-judge-tosses-obama-citizenship-lawsuit/#comment-60748
Sun, 26 Oct 2008 05:54:09 +0000http://www.thelibertypapers.org/?p=3096#comment-60748Thank you Jeff. I’ve asked this question at least twice now and been ignored as well. It’s not really a big deal but I really am curious.

Who would have standing and when would they have said standing to challenge a presidential candidate’s eligibility (for whatever reason – citizenship, age, or residency)?

In Schwarzenegger’s case, it would be so obvious that he wouldn’t even put his name on the ballot.

That’s probably true, but you managed to avoid the point of his question. If the citizenship requirement is too hard for you to fathom, what should happen if a 30 year old manages to get elected?

I understand that “standing” plays an important role in the legal system, but this stuff just makes my blood boil:

“If, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint.”

Is he seriously suggesting that such a simple and important clause is not enforceable unless and until congress elaborates on it? What good is a Constitution that can’t be accepted at face value???

We need to get a finding of fact on the merits, or we’ll be seeing this BS over and over again until Obama is out of whatever office he’s serving in.

With all due respect, one could say the same thing about 9/11.

Until we absolutely prove that George W. Bush didn’t conspire with the Illuminati and aliens from Mars to implicate Osama bin Laden in the murder of 3,000 Americans, we’ll just never be sure, will we ?

Not everything needs to be decided in a court of law to be determined to be true.